REV NO 11139 OF 2024 FREDY MALLYA VRS SAYONA DRINKS LIMITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 11139 OF 2024 CASE REFERENCE NO. 202405151000011139

BETWEEN FREDY MALLYA................................................ ........ ....... .......... APPLICANT

VERSUS SAYONA DRINKS LIMITED.............. ...................................... RESPONDENT

RULING Date of last Order: 05/ 07/2024 Date of Ruling: 25/ 07/2024 MLYAMBINA, J. Dissatisfied with the decision of the Commission for Mediation and Arbitration (herein CMA) in Labour Dispute No. CMA/DSM/KIN/732/2020 delivered on 8th November 2023, before Arbitrator G.M, Gelard, the Applicant preferred the present application. The application was faced with the preliminary objection to the following effect: That the application is hopelessly time barred The preliminary objection was argued by way of written submissions. In prosecuting the application at hand, the Applicant was represented by Mr. Praygod Jimmy Uiso, learned counsel. Mr. Mussa Rashidi Lilomo, Company Secretary appeared for the Respondent. Arguing for the objection, Mr. Lilomo submitted that the CMA's Award was delivered on 08/11/2023 whistly, the Applicant filed this revision application on 13th May, 2024. He argued that counting from 8th November, 2023, it is obvious that the application was filed on the 181th day from the date the impugned Award was rendered. Mr. Lilomo argued that Section 91(1) (a) o f the Employment and Labour Relations Act, [Cap 366 R.E 2019] (herein ELRA) requires a party aggrieved by the decision of the CMA to lodge revision application to this Court within six weeks from the date it was delivered. In support of his submission, the counsel referred the Court to the case of East Africa Mines

Limited v. Christopher Kadeo, Civil Appeal No. 53 of 2005, Court of Appeal of Tanzania at Dar es Salaam quoted with approval in the case of Burton Mwakalile v. Director General Vocational Education and Training Authority (VETA), Misc. Labour Application No. 16 of 2019 High Court Labour Division at Mbeya. In reliance to the case of William Burton Mwakalile (supra), Mr. Lilomo urged the Court to dismiss the application. He also cited Section 3(1) o f the Law o f Limitation Act, 1971 which provides that; a proceeding instituted outside the period of limitation prescribed for it by law must be dismissed. In reply, Mr. Uiso submitted that on 9th March 2023 the trial Arbitrator ordered the parties to file their final written submissions on 11th April 2023 and that the Award will be delivered on 12 May 2023. He stated that on the scheduled date, the Trial Arbitrator did not serve the Award to the parties as agreed. He promised to notify them once the Award is prepared. The counsel stated that they made follow-ups physically to the Arbitrator on whether the Award is ready or not and they were told to continue waiting. Counsel Uiso stated that on 6th May 2024 around 1340hrs, he made a follow up to the Arbitrator asking the reasons for the delay of issuing the Award, to his surprise, the Arbitrator served him with the Award and he signed thereof. He added that the copy is left with the

Arbitrator which is the proof of service of the Award as per the law as it is also deponed at roman (viii) of the Applicant's affidavit. It was argued that as per Section 91(l)(a) (supra), CMA is duty bound to serve the Award to the parties. The counsel added that Rule 8 (1) o f the Labour Institutions (Ethics and Code o f Conduct for Mediators and Arbitrators) Rules, GN 66 o f 2007 provides that the Arbitrator is barred from disclosing the Award to any one prior to its distribution to the parties. He stated that in the case at hand, the Arbitrator delivered the Award in the absence of the parties and each party collected the Award on different date. He was of the view that Mr. Lilomo misinterpreted the provision of Section 91(l)(a) (supra). In support of his submission, the counsel referred the Court to the Court of Appeal case of Serengeti Breweries Limited v. Joseph Boniface, Civil Appeal No. 150 of 2015, Court of Appeal of Tanzania where it was held that: We agree with Mr, Mtafya that, Revision cannot be pursued unless the Applicant is served with the award which remains in the domain of the Arbitrator. Since according to section 88(9) o f ELRA the award is required to be issued within thirty (30) days from conclusion of the arbitration or at a later date as agreed in writing by the parties, parties can only predict the initial probable date after the expiry of stated

period or the extended date. Thereafter to demand parties to make a follow-up of the award whose date of issue is not known is indeed not fair to the parties who might end up meddling or loitering on the corridors of CMA pursuing the unknown. In the referred decision, it was further held that: ...there is no rule in the labour Institutions (Mediation and Arbitration Guidelines) Rules which prescribes the duty and manner in which the Arbitrator or CMA shall serve the Award to the parties. This is Inadequacy in the employment laws as pointed out by Mr, Mtafya. We are of a considered view that, this uncertainty is not conducive for the timely adjudication of labour disputes. As such, we hereby direct that, the respective labour legislation be amended to require the arbitrator to notify parties on the date of delivery of the award and the arbitrator be required to serve the award to the disputing parties so as to enable them pursue their rights in case they are aggrieved. On the basis of the above submission, the counsel urged the Court to dismiss the preliminary objection in question. As rightly submitted by the parties, the governing provision for time limitation to file application for revision is Section 91 o f the ELRA (supra). The Applicant at hand preferred revision application as per Section 91(l)(b) (supra) which for easy of reference provides as follows: Any party to an

arbitration award made under Section 88(10) who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for a decision to set aside the arbitration award- (a) within six weeks of the date that the award was served on the Applicant unless the alleged defect involves improper procurement; The above provision is loud, that the aggrieved party file an application for revision after the award is served to him or her. As per the case of Serengeti Breweries Limited (supra) Arbitrator's are directed to inform the parties the date of the delivery of the award and serve them thereafter. In the case at hand, the Award was scheduled to be pronounced on 12/05/2023. On the scheduled date, the award was not delivered. The 5 same was delivered on 08/11/2023. The Applicant alleges that he was unaware of the date of the delivery of the award hence he was not present. The record shows that the Respondent was served with the award on the same date when it was delivered on 08/11/2023. Under such circumstances, it is my view that if the Applicant made follow up of the Award as claimed he would have been served early and not after almost six months as it is. Furthermore, there is no any proof in record to prove that the Applicant made follow ups. In absence of such crucial evidence on record, it is my observation that the Applicant abandoned

his case. In numerous Court decisions the remedy for time barred applications have been discussed including the case of Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016, Court of Appeal of Tanzania, Dar es salaam, the Court held that: ...it would be inequitable if we allowed one party to an employment contract to disregard time in instituting a complaint against the other party. We think matters would not come to finality as required if a party who allows grass to grow under his feet and delays in instituting an action, would only be given an order to refile it. The very object of the law of limitation would be defeated for... In the result, I find the preliminary objection at hand has merit and it is hereby upheld. Consequently, the application is hereby dismissed for being time barred. It is so ordered.

JUDGE 25/07/2024 Ruling delivered and dated 25th July, 2024 in the presence of the Applicant and Stephen Ngatolua, Human Resource Officer for the Respondent. Right of appeal explained.